CONSTITUTIONAL RIGHTS FOUNDATION
Bill of Rights in Action
FALL 1998 (14:1)

Culture Clash

The Kennewick Controversies

Thinking that they might have discovered the body of a recent murder victim, the two young men notified the county sheriff. Soon the Kennewick police were on the scene and discovered more bones. They called the county coroner and a local anthropologist, James Chatters, to help investigate. It soon became clear that the remains had been in the earth for some time—the bones showed deep discoloration and were encrusted with soil. Because the skull showed features common to Europeans, a long narrow face, receding cheek bones, a high chin and a square jaw, Chatters began to think that they had discovered the skeleton of an early pioneer.

Because the bones were found on federal land, Chatters applied for and received a permit to excavate the site.  He returned to the river bank several times and recovered more bones, laying them out in his basement for further study.  The pelvis demonstrated that the skeleton belonged to a man. The length of the leg bones showed that he had been 5 feet 9 or 10 inches tall. Teeth and bone formation indicated that he died when he was between 40 and 55 years old. Chatters also discovered a spear or arrow point lodged in the man's pelvis. The wound had healed over and was not the cause of death. It reinforced Chatter's belief that the Kennewick skeleton belonged to an early pioneer, who might have survived a battle with Native American Indians.  Then the picture began to change.

Chatters shared the bones with another anthropologist, Dr. Catherine MacMillan.  Although she agreed with many of Chatter's conclusions, including that the bones were of a European type, she believed that the spear point might be very old.  It seemed to be like those made during the Cascade period in ancient America, sometime between 4,500 and 9,000 years ago. This raised a serious question. Most scientists believe that Europeans did not arrive in the new world before 1000 A.D when the Vikings began to explore the continent. How could a person with European characteristics get wounded by a projectile at least 2,500 years older?

To solve the puzzle, Chatters sent a small bone from the hand of the skeleton to the University of California, Riverside, for radiocarbon dating. All living matter contains a radioactive element called carbon 14. When the organism dies, this element begins to decay at a constant rate.  By measuring the amount of carbon 14 left, scientists can tell how long ago the organism died. In this case, the test results showed that the Kennewick man had been dead for up to 9,300 years. This dating made the skeleton one of the oldest ever found in North America.

Maybe the bones were not those of a European, but belonged to a long-dead American Indian whose ancestors migrated to America as early as 10,000 years ago. But, another anthropologist, Grover Krantz of Washington State University, confirmed that the bones did not match any existing tribe in the area or any western Native American type.

The Legal Controversy

While the mystery of Kennewick Man began to grow, events took another turn. Before the scientists could conduct further studies, the U.S. Army Corps of Engineers took custody of the bones.

The corps was acting under the authority of a federal law called the Native American Grave Protection and Repatriation Act (NAGRPA).  Among other things, this law requires federal agencies, in control of lands where human remains are found, to make a determination whether or not they are of Native American origin. If the remains are of Native American origin, the agency must notify the Indian tribe associated with the remains. Then, upon request of the Indian tribe, the remains must be returned to the tribe for burial according to its customs. Under the act, the tribe owns the recovered remains.

NAGRPA, enacted in 1990, was designed to correct a long-standing grievance of Native Americans. Ever since the 19th century, Indian burial sites throughout the United States had been plundered of human remains, sacred relics, and pieces of art.  Some of the material ended up in private collections. But many items, especially skulls and bones, were sent to museums for study.  Scientists used the remains to learn about the Indian populations of North America.

Many Native Americans were offended by these practices.  They believed that the souls of their ancestors could not find peace unless their remains rested in proper graves. They believed that keeping the remains for study showed that white people did not respect Indian culture or practices. How would whites feel, they argued, if Native Americans dug up white cemeteries and kept the bones or put them on display?  NAGRPA addressed these concerns.  It also applied to federally funded museums, which were required to make an inventory of their collections, identify the source, and return items to the appropriate tribe.

The Army Corps of Engineers decided that this law applied to the Kennewick Man. It based its finding on the fact that the Kennewick bones were over 9,000 years old and were found on the traditional tribal lands of the Umatilla Indians.  They reasoned that this was too old for the remains to have been anything other than Native American. As a result, the corps notified several Washington state and northern Oregon tribes about the find, including the Umatilla Indians. The tribes demanded a halt to the study of the bones and asked that they be returned, some wanting immediate reburial. The corps seized the bones and stored them for the required 30-day waiting period for other claims as required by the law. During this time, the corps refused any further scientific study, nor would they permit the bones to be photographed.

The scientists who had been studying the remains became frantic. Much more work had to be done before they had any hope of uncovering the secrets of Kennewick Man.  Appeals to the corps to allow further study failed. On October 16, 1996, to stop the delivery and burial of the bones, eight scientists, all employed by major universities or museums, filed a federal lawsuit. The suit asked the court to review the actions of the Corps of Engineers and for an order barring the delivery of the bones to the Native American groups. The suit also requested that the scientists gain access to the remains for further study.

Lawyers for the scientists argued that the Corps of Engineers had made a mistake in determining that Kennewick Man could be traced to any existing Indian tribe or group. The mere facts that the bones were old and found on tribal territory proved nothing, according to the scientists. In fact, the bones were too old to be related to the Umatilla or the other tribes, they argued, and only further study would reveal whether the bones are even those of a Native American within the meaning of the act. If the bones are not, argued the scientists, they have a right to study them.

Lawyers for the Corps of Engineers opposed the call for a restraining order.  They argued that there was no need for one because the government had no immediate plans to deliver the remains to the tribes and would need more time to consider the various claims to the skeleton.

After a series of hearings, U.S. Magistrate Judge John Jelderks issued his ruling on June 27, 1997.  He ordered the Corps of Engineers to conduct a new review of its actions concerning Kennewick Man and to provide a 14-day notice before transferring the remains. He also questioned whether the corps had acted too quickly and failed to consider all relevant information.  He refused the scientists' request to study the bones, but ruled it could be raised again in the future.

On a legal basis, the fate of Kennewick Man may rest on the language contained in NAGRPA. The act applies to "Native American" remains and artifacts. According to the act "Native American" means "of, or relating to, a tribe, people or culture that is indigenous to the United States." That is, did the tribe, people or culture originate in America?

This is a tricky question when it comes to peoples as old as Kennewick Man.

The Anthropological Controversy

Most scientists believe that the ancestors of Native Americans crossed over to North America by means of the Bering land bridge. It stretched from Siberia to Alaska some 12,000 years ago and is now covered by water. Migrating from Asia, these ancient wanderers were classified by scientists as of "Mongoloid" stock. So are the modern Chinese, Japanese, and Koreans. Because of many physical similarities, particularly relating to features on the skull, modern American Indians were also classified as Mongoloid.

In recent years, scientists have begun to reconsider these beliefs. Many now believe that the prehistoric migration to America was much more complex and may have taken place at different times and involved different peoples. A number of ancient American skeletons have been discovered that, like Kennewick Man, have non-Mongoloid features.

Scientists are divided about what this means. Some believe that the evidence is building to show that some of the earliest Americans were of Caucasoid stock. These people are related to those of Europe and the Middle East. Some scientists believe that the Caucasians were more widespread in Asia than previously thought and could have come over on the land bridge, perhaps in an early wave.  According to this theory, the Caucasians mingled with various Mongoloid groups and both became the ancestors of Native Americans.

Other scientists argue that Caucasian features do not prove that the skeletal remains are truly Caucasoid. They argue that the long heads and angular faces may have developed naturally in the Asian population and are not related to Caucasians at all.  This would explain other groups, such as the Polynesians and the Ainu of Japan, who do not look like modern Asians and have some Caucasian characteristics.

Both groups of scientists believe that much more study is required before any of these questions can be settled. For them, Kennewick Man may provide an important piece to the puzzle.

Science versus Religion

Another controversy has re-emerged in the wake of finding the bones of Kennewick Man. It is a clash of values.

For scientists and many others in the modern world, the search for knowledge is supreme.  For them, it is crucial that humans unlock the secrets of the past to better understand the present and future. For them, science provides the key.

For others, including the Umatilla Indians, religion is more important. According to Armand Minthorn, a religious leader of the Umatilla, his people believe that Kennewick Man is not a Caucasian, but a Native American. According to their elders, "Indian people did not always look the way we look today."

Based on his religious beliefs, Minthorn rejects the theory of a Bering land bridge or that American Indians originated in Asia.  Citing oral histories that he claims go back 10,000 years, he believes Native Americans were created in North America.

He rejects the scientific argument that by stopping further study, the Indians will destroy evidence of their own history. "We already know our history. It is passed to us through our elders and through our religious practices."

For him, Umatilla religious beliefs forbid scientific testing on human remains and require that Kennewick Man be re-buried quickly. And for him, no compromise is possible.

Not all Native American leaders share Minthorn's views. Others believe that compromise is possible and have worked together with scientists to study the ancient people of America. In fact, several of the tribes involved in the Kennewick case are interested in a scientific study of the bones.

Still, it is unlikely that the controversies surrounding Kennewick Man will be resolved any time soon. Even when they are, an important question for our society will remain: When science and religious beliefs are in conflict, whose truths will prevail?

For Discussion

1. Why are the bones of Kennewick Man of scientific interest?

2. Should the NAGRPA law be applied to the bones of Kennewick Man? Why or why not?

3. What other science versus religion controversies are common in society today?  How do they compare to the one in the reading?

For Further Reading

Abrams, Garry, "The 'Unknown Hominid' Suffers A Fate Worse Than Death," Los Angeles Daily Journal, 9/12/97.

Murphy, Kim, "Skeleton Embodies Debate on America's First People," Los Angeles Times, 8/13/1997.

Slayman, Andrew L., A Battle Over Bones, Archaeology, January/February 1997. 

ATIVITY: A Matter of Compromise

Imagine that you are part of a working group charged with proposing a compromise to the conflict in the Kennewick case. It is your job to come up with a plan that 1) Provides assurance that any study of the Kennewick remains will be sensitive to the religious beliefs of Native Americans and 2) Provide scientists with sufficient freedom and access to the remains for proper study.

1. Form groups of three to four students and review the reading.

2. Brainstorm and discuss various elements of the plan.

3. Draft and adopt a plan consisting of the best elements.

4. Share and discuss your plan with the class. Create a class plan incorporating the best elements proposed.